## Facts

- A homeowner contracted in writing with a roofing contractor to install a new roof for $648, specifying “russet glow” shingles (a brown varied color).
- After installation, the homeowner observed conspicuous discoloration and non-uniform coloration, including yellow streaking.
- The contractor attempted to correct the appearance, but replacement shingles did not match, leaving the roof looking “patched” and non-uniform on three sides.
- Evidence indicated the roof was structurally sound and weatherproof, and the color differences might fade; however, after nine or ten months the roof still lacked a uniform appearance.
- Evidence also supported that the only way to achieve a uniform roof color was to replace the entire roof.
- The homeowner refused to pay; the contractor filed a mechanic’s lien and sought the contract price and foreclosure.
- The jury found: (1) the contractor failed to perform in a good and workmanlike manner; (2) the contractor did not substantially perform; (3) the homeowner received no benefit from the labor and materials; and (4) the reasonable cost to perform properly was $777.60.
- The trial court awarded the homeowner $122.60, set aside the mechanic’s lien, and denied the contractor’s cross-claim.

## Issues

1. Whether legally sufficient evidence supported the jury’s findings that the contractor failed to perform in a good and workmanlike manner and did not substantially perform the contract.
2. Whether the contractor, despite defects primarily affecting appearance, was entitled to recover the contract price under the doctrine of substantial performance.
3. Whether the contractor could recover in quantum meruit when the jury found the homeowner received no benefit from the work and materials.
4. Whether the contractor preserved factual-sufficiency complaints in its motion for new trial.

## Decision

- The court affirmed the judgment for the homeowner.
- The evidence permitted the jury to find no substantial performance because the defect in uniform appearance could be cured only by replacing the entire roof.
- The contractor was not entitled to recover the contract price or foreclose the mechanic’s lien.
- The contractor was not entitled to quantum meruit recovery in light of the jury’s “no benefit” finding.
- The contractor’s motion for new trial did not specifically preserve factual-sufficiency challenges to the adverse jury findings; in any event, the record supported the verdict.

## Legal Principles

- A contractor who has substantially performed may recover on the contract despite minor deviations, subject to appropriate offsets for defects.
- Substantial performance is a question of fact assessed by weighing the purpose of the contract, the owner’s expected satisfaction, the excuse for deviation, and the hardship of requiring strict compliance.
- Substantial performance requires good-faith intent to comply and defects that are not pervasive and can be remedied without materially damaging other work.
- In residential construction, aesthetic conformity may be an essential part of the bargain; a major aesthetic defect that cannot be corrected without redoing the work may support a finding of no substantial performance.
- Quantum meruit recovery depends on a benefit conferred and accepted; a factfinder may determine no compensable benefit when defective work must be entirely replaced to obtain the contracted-for result.
- Complaints that a jury finding is against the great weight and preponderance of the evidence must be specifically raised in the motion for new trial to preserve factual-sufficiency review.

## Conclusion

The court upheld a finding that a functionally adequate but aesthetically unacceptable roof, correctable only by complete replacement, was not substantial performance; the contractor therefore could not recover the contract price, enforce a mechanic’s lien, or obtain quantum meruit where the jury found no benefit to the homeowner.


O. W. Grun Roofing & Constr. Co. v. Cope, 529 S.W.2d 258 (Tex. Civ. App.—San Antonio 1975, no writ)